[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 15417 Non

- Argument Calendar

________________________ D.C. Docket No. 8:09

- cr - 00378

- RAL

- AEP

- 1 UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus JOHN JAIRO GALLEGO

- VALENCIA, a.k.a. Joda, a.k.a. Frederico, Defendant

- Appellant.

________________________ Appeal from the United States District Court for t he Middle District of Florida

________________________ (August 7, 2013) Before BARKETT, HULL, and JORDAN, Circuit Judges.
PER CURIAM: John Gallego

- Valencia appeals the district court’s grant of the government’s Fed. R. Crim. P. 35(b) motion reducing his 168

- month senten ce of imprisonment

Case: 12-15417 Date Filed: 08/07/2013 Page: 1 of 72 to a sentence of 135 months’ imprisonment . His original sentence was imposed after he pled guilty to conspiring to manufacture and distribute cocaine with intent to import it into the United States

. As part of his plea agreement, Gallego

Valencia agreed to cooperate with the government, who, in turn, promised to advise the district court of the full extent of his cooperation. Accordingly, about two years after Gallego

- Valencia was originally sentenced , the government filed its Rul e 35(b) motion , explain ing that he had been ready and willing to testify against another individual , Luis Urrego

- Contreras, who later pled guilty before trial

. The distr ict court granted the government’s motion on the same day it was filed , after determin ing that it did not require any response from Gallego

- Valencia or an evidentiary hearing

. On appeal, Gallego

- Valencia argues that the district court er red by failing to afford him an opportunity to respond to the government’s Rule 35(b) motion, and abus ed its discretion by failing to conduct an evidentiary hearing. He requests that we remand the proceedings with instructions to reassign them to a different district
court judge. We review de novo the application of law to sentencing issues, as well as the district court’s interpretation of the Federal Rules of Criminal Procedure. United States v. Campa , 459 F.3d 1121, 1174 (11th Cir. 2006) ( en banc ); United States v. Manella , 86 F.3 d 201, 203 (11t h Cir. 1996). We review the district court’s refusal

Case: 12-15417 Date Filed: 08/07/2013 Page: 2 of 73 to grant an evidentiary hearing for an abuse of discretion. See United States v. Yesil , 991 F.2d 1527, 1531 (11th Cir. 1992)

. A federal court may not modify a term of imprisonment once it is imposed

u nless, among other things, a modification is expressly permitted by Rule 35. 18 U.S.C. § 3582(c)(1)(B). Under Rule 35(b), the district court may reduce a sentence pursuant to a motion from the government if, after sentencing, the defendant provided subst antial assistance in investigating or prosecuting another person. Fed. R. Crim. P. 35(b)(1). Although the district court granted the government’s Rule 35(b) motion, Gallego

- Valencia argues that by doing so without hearing from him, the district court unf airly deprived him of a meaningful opportunity to ensure that it was aware of all aspects of his post

- sentencing cooperation. He argues that his plea agreement required the government to advise the district court of his cooperation , but that the governmen t’s Rule 35(b) motion did not fully inform the district court of all that he did. The government’s motion stated only that “the defendant has continued to assist law enforcement, which assistance, the government views as substantial assistance. Specifica lly, the defendant was prepared to testify at the trial of United States v. Luis Urrego

- Contreras , and was transported to the Middle District of Florida; however, Urrego

- Contreras pled guilty before trial.” Gallego

Valencia contends that, had he been affor ded an opportunity to respond, he would

Case: 12-15417 Date Filed: 08/07/2013 Page: 3 of 74 have advised the district court that th e government apprehended Urrego

- Contreras through his cooperation, Urrego

- Contreras pled guilty as a direct result of his willingness to testify, he furnished information regard ing a substantial New York matter, and that he and his family risked danger and injury due to his cooperation. We find that our circuit decisions in Yesil and United States v. Hernandez , 34 F .3d 998 (11th Cir. 1994), support the conclusion that t he district court err ed by failing to afford Gallego

- Valencia an opportunity to respond to the government’s Rule 35(b) motion.
In Yesil , the government and two defendants filed a joint Rule 35(b) motion that provided incomplete details and cursory evidence of the defendants’ cooperation, and, due to the sensitive nature of the ongoing investigation, requested an in camera evidentiary hearing in order to more fully describe the defendants’ cooperation. 991 F.2d at 1529

– 30. 1 The district court summarily den ied the motion without an evidentiary hearing. Id . at 1530. W e held that the district court abused its discretion by refusing to conduct an evidentiary hearing , noting that the district court was obligated to accept the government’s proffer

1 The case involved a third defendant also , for whom t he government filed a separate Rule 35(b) motion that p rovided some facts regarding th e defendant’s cooperation. Id . at 1531. Like Gallego

- Valencia here, t he defendant requested a hearing in order to fully appraise the district court of his cooperation. Id . The district court summarily denied the defendant’s motion for a hearing, but summarily granted the government’s motion for a sentence reduction. Id . The court also summarily denied the parties’ joint motion to reconsider, which stressed that the Rule 35(b) motion had not fully described the defendant’s cooperation. Id

.

Case: 12-15417 Date Filed: 08/07/2013 Page: 4 of 75 concerning t he defendants’ cooperation once it accepted the plea bargains that required the government to advise it of the nature and extent of the defendants’ cooperation. Id. at 15 32. In arriving at this determination, we noted that the plea bargain severely curtailed the district court’s usual discretion, as it too was bound by the plea agreement, and that the defendants were entitled to relief once they were denied the benefits of t heir plea agreements. Id. We remanded for an evidentiary hearing before a different district court judge so that the government could present complete information regarding the nature and extent of the defendants’ cooperation. Id . at 1533. Similarly, i n Hernandez , t he government filed a Rule 35(b) motion, which did not detail the defendant’s cooperation for security reasons , but i nstead, requested a hearing. 34 F.3d at 999

– 1000 . The district court denied the government’s Rule 35(b) motion, as well as the government’s subsequent motion for reconsideration. Id . at 1000. W e held that the district court’s refusal to conduct an evidentiary hearing effectively prevented the government from presenting its Rule 35(b) motion, and thereby forced a breach of th e defendant’s plea agreement. Id . at 1001. We stressed that our decision stemmed from the breach of the plea agreement, and that district courts are not categorically required to grant every request for an evidentiary hearing. Id . at 1001 n.6. Rather, the

Case: 12-15417 Date Filed: 08/07/2013 Page: 5 of 76 district court could not frustrate a plea agreement in which the government agreed to file a Rule 35(b) motion. Id

. Here, because the government’s Rule 35(b) motion appears to have incompletely conveyed the nature and extent of Gallego

- Valencia ’s cooperation, we find that he was denied the benefits of his plea agreement when the district court ruled on the motion without hearing from him. Accordingly, we vacate the district court’s order, and remand for further proceedings. On remand, Gallego

- Valencia will have an opportunity to respond in writing to the government’s Rule 35(b) motion, and may request an evidentiary hearing if he believes one is required. We leave it to the district court’s discretion whether to grant an evidentiary hearing sh ou ld Gallego

- Valencia request one as there is no categorical entitlement to an evidentiary hearing. See Hernandez , 34 F.3d at 1001
n.6. 2 Although Gallego

- Valencia makes a conclusory argument that these proceedings should be transferred to another distr ict court judge, he never provides any reasons why , in his case , we should conclude that the currently

- assigned judge

2 The government also argues that even if the district court erred in not allowing Gallego

Valencia an opportunity to respond, any such error was harmless. The government points to the district court’s statement in its Rule 35(b) order that under the circumstances, a sentence reduction of more than two levels would not have comported with the statutory purposes of sentencing. But th e “circumstances” before the district court were those provided by the government in its Rule 35(b) motion, which is exactly what Gallego

- Valencia is challenging here as being insufficient and not presenting the full extent of his cooperation. Thus, we ca nnot say any error was harmless as we simply do not know how the district court would have weighed the additional information that Gallego

- Valencia argues he should have been permitted to present.

Case: 12-15417 Date Filed: 08/07/2013 Page: 6 of 77 would have difficulty putting his previous views and findings aside or that reassignment is appropriate to preserve the appearance of just ice

. See Yesil , 991 F.2d at 1533 n.7

. Thus, we see no reason to order the transfer of these proceedings upon remand. VACATED AND REMANDED.

Case: 12-15417 Date Filed: 08/07/2013 Page: 7 of 7